AFRICA NETWORK MEETING 2017 - + COUNTRY UPDATES - Adams & Adams
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+ COUNTRY UPDATES + IP CASE LAW REVIEW
AFRICA NETWORK
MEETING 2017
1
CAPE TOWN,
SOUTH AFRICA AFRICA
AFRICAUPDATE
UPDATE 2018
UPDATE2018
2018
INTRODUCTION
SIMON BROWN
Economic growth goes hand-in-hand Economists agree that the modest gains likely stem from an increase in commodity
prices, favourable global financing conditions and slowing inflation, that helped lift
with the evolution of intellectual property household consumer demand. However, growth was still weaker than hoped as
the region continues to grapple with negative per-capita income growth, weak
protection, particularly in fostering investment and a decline in production output.
innovation, technology and industrial On the back of firming commodity prices and gradually strengthening domestic
demand, Africa’s economy is projected to continue to rise by some 3.2% in 2018
development. Save for a few territorial and to 3.5% in 2019. However, growth will remain below pre-crisis averages, partly
reflecting a struggle in larger economies to boost private investment – whereas non-
exceptions, Africa’s macro economy resource intensive countries, such as Cote d’Ivoire, Senegal, Ethiopia, Tanzania and
Chairperson of the Africa Strategy has endured a challenging decade, but Kenya are expected to expand by more than 5%.
Committee and co-chair of the Trade Crucial to greater trade and investment is a need for African countries to make
Marks Department | Adams & Adams signs of an upswing showed in 2017, with substantial improvements on the legislative front - bringing their economic
growth having rallied by around 2.4%. The environments in line with global trade blocks and other developed nations. A failure
to advance local legislation has a profound effect on the prospects of sustained
improvement reflected a modest recovery investment. In respect of intellectual property, there continue to be significant
legislative and enforcement improvements in many African jurisdictions, and in this
by the so-called ‘Big 3’ economies of issue of Africa Update, we examine recent changes, updates and developments.
Nigeria, Egypt and South Africa. As a firm, Adams & Adams continues to spend significant time and effort in developing
IP laws in Africa by assisting governments, ministries and registries throughout the
continent - by providing input on laws and procedures, while at the same time,
working closely with our African partners throughout the continent.
In addition to the annual Adams & Adams Africa Network (AAAN) meeting, we have
now broadened the scope of the event to engage with Registry officials from around
the continent. In September 2017, and in partnership with the European Patent Office
(EPO), we hosted the first-ever Africa Patent Summit, to discuss issues of substantive
examination in the various territories in the African.
We plan to expand on the Summit again this year, and our teams are also in the
process of updating our Practical Guide to Intellectual Property in Africa publication,
as well as the Practitioner’s Guide to Intellectual Property in South Africa. Watch this
space! I trust that you will find this Update useful and informative.
AFRICA UPDATE 2 018 3
JOHANNESBURG,
SOUTH AFRICA AFRICA UPDATE 2018
AAAN | ADAMS & ADAMS AFRICA NETWORK
AFRICA |
NETWORK EXPANSION
Tripoli
The Adams & Adams Africa Network is an extensive association of Associate Offices
that operate in conjunction with local partners – a means of enhancing our service Cairo
offering across Africa.
Adams & Adams continues to evolve and position itself as the first choice for anyone
wishing to protect or enforce their Intellectual Property rights in Africa. In 2017, to
advance its strategic position, Adams & Adams, established additional Associate
Offices in Ethiopia and Zimbabwe.
This brings to twenty-one, the number of Associate Offices in different jurisdictions as
Banjul
part of the Adams & Adams Africa Network (AAAN). These include offices in Egypt,
Nigeria, Angola, Mozambique and Cameroon which service important jurisdictions
and the important regional IP organisations, OAPI and ARIPO. Freetown Abuja
Addis Ababa
Monrovia
Ethiopia has long been on our radar. It is a country of immense historical, economic Accra
Yaoundé
and political importance and we have seen a significant increase in the interest
expressed by many of our clients in this jurisdiction over the past few years. Ethiopia
is one of the fastest growing economies in Africa and we are very excited to now Nairobi
have a presence in this country,” says Simon Brown, Partner and Co-Chairperson of Bujumbura
the Trade Marks Department. “Despite the severe economic downturn experienced
Dar es Salaam
by Zimbabwe for well over a decade, Zimbabwe has maintained its status as one of
Luanda
the preferred destinations in Africa for IP proprietors. This is testament to the immense
economic potential that the country has. It is with this belief in our Southern African
neighbour that Adams & Adams established an office in Zimbabwe in July 2017.”
ADAMS & ADAMS' OFFICES
Pretoria | Johannesburg | Cape Town | Durban
The addition of the Ethiopian and Zimbabwean offices to the Network, places Harare
Adams & Adams in a unique position in terms of its IP offering on the African ASSOCIATE OFFICES
Angola | Botswana | Burundi | Cameroon (OAPI)
continent. The expansion of the Network is aimed at benefiting clients by creating
Cape Verde | Egypt | Ethiopia | Ghana | Kenya Windhoek
greater efficiencies and better pricing. In the past four years, Adams & Adams
Lesotho | Liberia | Libya | Mozambique (ARIPO) Gaborone
has also established Associate Offices in Kenya (2013), Nigeria and Ghana (2014), Namibia | Nigeria | Sierra Leone
Pretoria
Maputo
Mbabane
Egypt - also acting as a hub office for Algeria, Libya, Morocco, Tunisia as well as São Tomé and Príncipe | Swaziland Johannesburg
the north eastern territory of Sudan (2015) - and The Gambia - also acting as a hub Tanzania (including Zanzibar) | The Gambia | Zimbabwe Maseru
Durban
office for Liberia and Sierra Leone (2016).
Cape Town
“In the territories in which we have established our own offices, we continue to see
AFRICA UPDATE
the benefits of preferential pricing leading to significant growth in market share. This
2 018
has made us more determined to increase the scope of our network into Africa,”
adds Brown.
4
PRETORIA,
SOUTH AFRICA AFRICA UPDATE 2018
Adams & Adams Africa Network Meeting Patent Registrars’ Summit
INAUGURAL AFRICA PATENT
AFRICA IP NETWORK WEEK | 2017 EXAMINATION SUMMIT | PRETORIA
Adams & Adams regularly hosts a meeting Regional Intellectual Property Organisation (ARIPO), Mr. As part of its annual Africa IP Network Week, Adams & Adams co-hosted the
Fernando do Santos said, “ARIPO has attended this meeting inaugural Africa Patent Examination Summit with the European Patent Office
of partners from Associate Offices and
for all five years. The quality of the discussions and topics at the (EPO) in Pretoria, South Africa, on 13 September 2017. Few countries in Africa
Registrars from around Africa – a concept Network Meeting has improved significantly, and it is good to conduct any form of substantive patent examination at present, mainly due
designed to maintain relationships, build see more and more Registry and government officials joining to a lack of capacity and resources. South Africa has a depository system but
the event.”
capacity and share information about has begun training patent examiners as it intends to introduce substantive
examination in the near future. Work-sharing and pooling of examination
updates on intellectual property and In her keynote address, Ms. Nicky Weimar, Senior Economist
resources in the form of regional institutions such as the African Regional
at Nedbank, delivered a valuable analysis of the current
corporate and commercial developments Intellectual Property Organization (ARIPO) and Organisation Africaine de la
outlook and performance of Africa’s economies, highlighting
across the continent. The AFRICA IP challenges that the continent faces in pursuing growth –
Propriété Intellectuelle (OAPI) is an effective way for addressing these common
challenges. In addition, Morocco, and soon Tunisia, allow holders of EP patents
NETWORK WEEK took place from 11 – 15 challenges such as legislative and political uncertainty.
Meeting chair, and partner at Adams & Adams, Mr. Simon to validate granted European patents in their jurisdictions via so-called validation
September 2017 and included events agreements.
Brown, agreed that while legislative uncertainty hampered
and functions such as the Patent Summit, development, it was encouraging to note from discussions
In contrast to other registration type systems available in African countries such
IP Network Meeting, Network Cocktail at the Africa Patent Summit, held the day before, several
as Ethiopia, the DRC and Swaziland, this allows for a proper delimitation of the
Function, One-on-One Meetings Day and jurisdictions are actively addressing their IP laws to encourage
granted scope of protection, which is favourable to both the patent proprietors
efficiency in processing of applications, providing better
Montecasino Getaway. enforcement mechanisms and encouraging innovation and
and third parties.
entrepreneurship. Registrars, officials and patent examiners from twenty African jurisdictions, as
well as representatives from regional organisations such as the EPO, ARIPO and
Breakaway sessions focused on current IP matters such as
OAPI met to discuss the various approaches to patent examination available
AFRICA IP NETWORK MEETING | the Madrid Protocol, the Banjul Protocol, design litigation,
and to share experiences and best practices in this regard.
franchising agreements and patent prosecution across
PRETORIA Africa. Many Africa Network delegates highlighted the Adams & Adams Partner and co-chair of the summit, Mr. Danie Dohmen,
Adams & Adams hosted its 5th annual IP network seminar, the fact that the Meeting affords them a unique opportunity to described the meeting as a platform for an “honest and open discussion
largest of its kind on the continent, for partners and IP officials address concerns and queries directly with Registrars and between the Registrars, regional organisations and the EPO” in assessing the
from across Africa. The meeting brought together close to 100 IP administrators, in an environment that encourages robust status of patent examination in Africa and prospects for future co-operation. Mr.
leading IP practitioners and administrators, representing 42 discussion. François-Régis Hannart, Principal Director for European and International Co-
out of 54 jurisdictions on the continent, as well as regional and operation at the EPO, stated; “It is evident that the worldwide patent system is
The meeting also serves as the only platform in Africa for
global organisations such as ARIPO, OAPI, EPO and WIPO. becoming more connected and integrated as a result of globalisation, and that
African IP practitioners to meet and engage on topics of
Africa will play an important role in this system. This meeting offered a valuable
The annual IP showcase event was only briefly interrupted in mutual interest in the IP arena. It provides attendees with
platform for forging new partnerships in the region, both bilateral and multilateral,
2014 over concerns of the threat posed by the outbreak of access to the combined skills and knowledge of the partners
AFRICA UPDATE
thereby strengthening the ties between Europe and Africa even further.”
the Ebola virus in West Africa. On the continued growth and and professionals at Adams & Adams, as well as a large group
2 018
success of the Meeting, the Director General of the African of IP professionals who often face similar capacity challenges
in their respective jurisdictions.
6
DURBAN,
SOUTH AFRICA AFRICA UPDATE 2018
900 900
835
780
800 747 800
693 697
700 700
603
600 600
529
TOTAL
500 500
424
400 365 400 321 362 381
311 286
300 300 283
228 TOTAL
181
200 200
102
100 100
0 0
2009 2010 2011 2012 2013 2014 2015 2016 2017 2009 2010 2011 2012 2013 2014 2015 2016 2017
Members of the 41ST Administrative Council Meeting ARIPO PATENTS FILED 2009 – 2017 ARIPO TRADE MARKS FILED 2009 – 2017
ARIPO reported an increase in the number of applications received – both for patents
6TH SESSION OF THE WORKING
ARIPO and trade marks. For trade marks, this marks the highest number of applications
GROUP ON THE IMPROVEMENT
since the inception of the Banjul Protocol.
OF THE BANJUL, HARARE AND
ARIPO ADMINISTRATIVE COUNCIL SWAKOPMUND PROTOCOLS
MEETING | LILONGWE The 6th session of the Working Group on the Improvement of
the ARIPO Protocols relating to Industrial Property was held
The 41st Session of the Administrative Council of ARIPO was held in Lilongwe, Malawi at the ARIPO headquarters in Harare Zimbabwe in June
from 20 – 22 November 2017. Adams & Adams Partner, Nthabisheng Phaswana, 2017. The Working Group is comprised of IP practitioners and
Africa Practice Manager, Menzi Maboyi, and Nidia Almeida from Adams & Adams Registry officials from various ARIPO member and observer
Mozambique attended the session. states. The Group discussed proposals to amend the Harare
Protocol which regulates the filing and prosecution of
Adams & Adams works directly with ARIPO through its Mozambique office and is
patents and designs in ARIPO and also addressed some of
one of the largest users of the ARIPO patent system. Several changes to the Harare
the challenges in the operation of the Banjul Protocol which
Protocol were adopted, with effect from January 2018, including provisions to allow
regulates Trade Mark matters in ARIPO. Adams & Adams was
for accelerated and/or delayed examination for patent applications.
represented at this session by Partners, Mariëtte du Plessis and
At the Session it was also announced that ARIPO and the Chinese Patent Nthabisheng Phaswana.
Office (SIPO) have signed a Patent Prosecution Highway (PPH) agreement. The Adams & Adams Partners, Nthabisheng Phaswana and
The Banjul Protocol has been ratified by ten of the 19 ARIPO Mariëtte du Plessis, with some of the Working Group members
implementation date of the agreement has not yet been set, but it is expected to
member states, but has only been domesticated in three
come into effect sometime in 2018. The announcement followed the signing of a
of the member states - Botswana, Liberia and Zimbabwe.
new Memorandum of Understanding (MoU) in March 2017 between ARIPO and the
Adams & Adams made recommendations regarding
State Administration for Industry and Commerce (SAIC) of the People’s Republic
ARIPO’s involvement in the domestication of the Banjul
Adams & Adams Africa Practice of China, which will see the development of capacity-building activities, such as
Manager, Menzi Maboyi with the comparative research studies, workshops, training on examination, opposition and
Protocol and the harmonisation of national laws of member MR. CHRISTOPHER KIIGE RETIRES
ARIPO DG, Mr. Fernando dos Santos states. In addition, recommendations were also made to
dispute resolution as well as on IT, between the two institutions. On 28 February 2018 the Director of Intellectual Property
amend the Banjul Protocol to centralise ARIPO oppositions.
at the ARIPO Secretariat, Mr. Christopher Kiige retired from
The submissions were accepted by ARIPO’s Technical
ARIPO after more than 20 years with the organisation. Mr.
Committee.
Kiige has championed ARIPO’s mandate to the member
countries, cooperating partners and patent agents. He will
be missed, but the industry was encouraged to hear that his
skills will not be lost to the continent, as he returns to Uganda,
his home country, where he has undertaken to assist in the
development of IP. The Adams & Adams Africa Network
wishes him well.
8
AFRICA UPDATE 2 018
PRETORIA,
SOUTH AFRICA AFRICA UPDATE 2018
600 552 597
550 529 519
515 507
OAPI 500 447 445
400
NEW DIRECTOR GENERAL APPOINTED TOTAL
300
On 1 August 2017, Mr. Denis Loukou Bohoussou of Côte d’Ivoire, began his tenure as
200
the new Director General for a period of five years. Mr. Bohoussou’s predecessor, Dr.
Paulin Edou Edou’s term of office ended on 31 July 2017. Mr. Bohoussou attended the 100
16th Session of the Council of Ministers of ARIPO held in Lilongwe, Malawi from 23 – 24 0
November 2017 where he met with representatives from Adams & Adams. 2009 2010 2011 2012 2013 2014 2015 2016 2017
OAPI PATENTS FILED 2009 – 2017
NEW LOGO ADOPTED OAPI DIRECTORATE OF OAPI ADOPTS 11TH EDITION OF THE
On 11 December 2017 at a meeting held in Niamey, Niger, the Board of Directors of INTELLECTUAL PROPERTY NICE CLASSIFICATION FOR THE
OAPI adopted a new logo of the organisation.
At the beginning of 2018 the OAPI Directorate of Intellectual
REGISTRATION OF TRADE MARKS
The logo contains seventeen abstract elements which are intended to represent Property resolved that it be divided into two separate The Trade Marks Registry of the African Intellectual Property
the diversity in the organisation – particularly the diversity of its 17 Member States – directorates - one for Trade Marks and another for Patents Organization (OAPI), announced recently that the 11th
Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, and Designs. Directors who will oversee the two directorates edition of the Nice Classification system is to be applied
Mr. Denis Loukou Bohoussou, OAPI DG
and Nthabi Phaswana, Partner, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Côte d’Ivoire, Mali, Mauritania, were also appointed. The decision to split the two directorates when filing new trade mark applications in OAPI.
Adams & Adams is yet to be implemented.
Niger, Senegal and Togo.
OPPOSITION PROCEEDINGS
Adams & Adams successfully represented Labarotorios Indas, S.A - international proprietor of
the well-known BAMBINO trade mark - in opposition proceedings before the OAPI Commission.
Labarotorios Indas registered the word mark BAMBINO in classes 3, 16 and 25 within in the OAPI
territory, used in relation to diapers and baby wipes. The Applicant, LANA BIO-COSMETICS,
applied to register the mark BAMBINO logo in OAPI in respect of the identical class 3 goods.
They specialise in the manufacture and commercialisation of cosmetics, hair products and
fragrances. Labarotorios Indas filed an opposition to the application and was defended by the
Applicant, but the Opposition Commission ruled in favour of Labarotorios Indas and ordered that
the Applicant’s BAMBINO logo to be cancelled. LANA BIO-COSMETICS subsequently filed an
appeal to this decision before the OAPI Commission and applied to the High Court in Yaounde
to expunge Labarotorios Indas’ registration on the basis of non-use. The mark is, however, used
in relation to diapers and baby wipes in some of the OAPI member states and presents a valid
defence to the cancellation application. The proceedings are ongoing.
AFRICA UPDATE 2 018 11
LUANDA,
ANGOLA AFRICA UPDATE 2018
ALGERIA ANGOLA
PROPOSED E-COMMERCE LEGISLATION TO REGULARISE
BILL, 2018 NATURAL GAS PRODUCTION IN ITS
The Minister of Post, Telecommunications, ICT and Digital
FINAL STAGES
Technology has proposed a new E-commerce Bill, which aims The Secretary of State for Oil announced that the legislation
to restrain foreign e-commerce operators from operating in providing a framework for the commercialisation of natural
Algeria. The Bill recognises that there is a lack of control of gas in Angola is in its final stages. This legislation is welcomed, Adams & Adams Partner, Charl Potgieter, with officials from
Seized counterfeit goods, Angola
Interpol, Customs and Police
technology in Algeria and aims to regulate e-commerce as Angola, Africa’s second largest oil producer, currently
by creating a national record of all e-commerce operators lacks legislation regulating the rights of companies to explore
that requires operators to disclose tax information and and produce natural gas in the country. Natural gas is used SECOND PHASE OF RECORDS Additional training was then conducted in July with other
Police units from Gaborone, Lobatse and Francistown. The
contact details; imposing certain terms, conditions and levies as a source of energy for cooking, heating and generating UPDATE UNDERWAY training was followed by search and seizure operations at
on e-commerce transactions; and prohibiting specified electricity. It is considered as the cleanest burning fossil fuel,
goods and services, such as gambling, alcohol, tobacco, The Angola Industrial Property Institute embarked upon an various trading plazas around the Gaborone industrial district.
as it produces lower levels of greenhouse gas emissions
pharmaceutical products, products infringing intellectual internal project of restructuring records with the intention to A large quantity of footwear and clothing was delivered-
compared to oil and coal. In 2015, it is estimated that Angola
property rights or any product prohibited by Algerian law. regularise affairs at the AIPI. At the time, it was required to up for destruction. The infringers were arrested and paid
produced 773 million cubic meters of natural gas.
update the information kept in the records at the Registry in admission-of-guilt fines to the State.
The Bill, if passed, may provide an alternative method to It is understood that the relevant legislation should be passed respect of all marks with an application number between 1
restrain or, at least, frustrate the sale of products through
e-ecommerce that may infringe intellectual property rights.
by the Angolan Executive Cabinet Council in 2018. It will be
interesting to see the provisions of this legislation and the
and 5 000. As anticipated, a second notice was published in WIPO REGIONAL TRAINING
the Circular of Industrial Property Bulletin 11/2017, in terms of
way it regulates the production of natural gas by major oil which the official records of applications with applications
WORKSHOP ON IPAS
RESTRICTION ON IMPORTS companies in Angola. numbers between 5001 to 20757 must be updated. WIPO held a Regional Training Workshop on IPAS for Trade
Mark Examiners in Gaborone from 10 – 14 July 2017. Adams
In 2016 the Algerian government restricted import licences to This exercise excludes applications that have been granted
vehicles, cement and concrete reinforcing bars. Subsequently
DG OF IAPI RETURNS TO OFFICE or refused. The current phase ends on 24 November 2018 and
& Adams Partner, Stephen Hollis was selected by WIPO as
one of the speakers at the Seminar – he addressed how best
21 more industrial and agricultural products were added to failure by proprietors to comply will result in the applications
In 2016 the Director General of IAPI, Ms. Ana Paula Miguel, the system could be utilised by the Registries in providing
the list in 2017. The move to reduce imports and encourage expiring.
took an extended leave of absence. An interim DG, Mr. more comprehensive search results. Stephen, along with
domestic products was implemented by suspending the Dário Camati was appointed pending Ms. Miguel’s return. In Menzi Maboyi, Africa Practice Manager, also visited the
importation of several hundred specified products, raising September 2017, Ms. Miguel resumed her duties as DG. offices of the Company and Intellectual Property Authority
taxes and tariffs for others and suppressing import licences.
(CIPA). They followed-up on long outstanding matters,
The suspension of imports is expected to affect 851 products BOTSWANA
in 2018. ANTI-COUNTERFEITING though the Data Validation project limited access to
the files.
OPERATIONS
CUSTOMS TRAINING AND
PATENTS: UPDATE ON PENDING In May 2017 training was conducted with members of the GOUNTERFEIT GOODS SEARCH- DATA VALIDATION PROJECT
CASES Customs and the Criminal Investigations Division (SIC) of the
AND-SEIZURE OPERATIONS
Angolan Police. As a practical exercise, members of Customs In July 2017 notification was received from the Botswana
The Algerian Patent Office began conducting substantive inspected several containers for counterfeit goods at the port The alarming increase in counterfeiting activities on the Registry advising users that it was embarking on a Data
examination in 2013 without making corresponding of Luanda. As a result of the training, in June 2017, Customs continent has resulted in our anti-counterfeiting team Validation Project of all the industrial property files in the
amendments to their national laws. Many patent applications officials detained containers holding large quantities of becoming more involved with local law enforcement office. The purpose of the project is to ensure that information
remain pending as the Patent Office does not have capacity counterfeit footwear. Details of the importer and exporter agencies in combating counterfeiting in several African in physical files correlates with information on the online
to process arguments or amendments filed in response to the were obtained allowing for further action to be pursued. countries - through training and joint operations. In February Industrial Property Administration System (IPAS) used by the
office actions that were issued. We will continue to engage Further training was then conducted in October 2017, 2017, Adams & Adams Partner, Charl Potgieter conducted Registry. The immediate effect of the project was a severe
with the Registry in an attempt to expedite the processing of followed by an inspection of containers at the port which customs training in Gaborone with members of the Botswana restriction on the accessibility of physical files. The project
long-outstanding matters. led to the detention of a container with a large quantity Police Detectives Unit. The Deputy Commissioner of the also aims at addressing the issue of inaccurate information
of suspected counterfeit personal care products. These Criminal Investigations Division (CID), Botswana Police was on IPAS, and forms part of the Registry’s 2020 digitalisation
detentions follow ongoing and annual product identification also present during the training. objectives of eradicating the physical file system. Trade
workshops conducted by Adams & Adams with the Angolan mark files, given their large number, were prioritised. Informal
customs officials.
12
2 018
CAIRO,
EGYPT AFRICA UPDATE 2018
Adams & Adams Partners, Dieter Welthagen and Stephen Hollis, with Tigist
Bogale (Patent Directorate Administration Team Leader), Lidet Abebe (A&A
Ethiopia), Dereje Weldemichael (Patents Director) and Getachew Tafa
Anti-counterfeiting training workshop, Botswana Seized counterfeit goods, Botswana Associate Office in Ethiopia (Patent Examination Team Leader)
discussions held with the Registrar, Mr. Tim Moalusi, during the 2017. Unfortunately, DRC official fees are already among the servicing not only Egypt but also Morocco, Tunisia, Algeria ETHIOPIA, THE WORLD’S FASTEST
WIPO Trade Mark Examiners’ Seminar revealed that an initial highest in Africa. The increase encompasses adjustments of and Libya. Because of this we have been able to substantially
deadline of September 2017 had been set by the Registry. official fees for trade mark, design and patent registration reduce our fees for IP matters in this region.
GROWING ECONOMY IN 2017
Assurances were given that all new applications will proceed matters. Ethiopia was named in the World Bank’s 2017 edition of the
without interruption and that the project will also address
the backlog experienced in respect of old matters. The
EGYPT LAUNCHES DIGITAL Global Economic Prospects Report as the world’s fastest
growing economy in 2017. The IMF has estimated that
completion of the validation process has since been revised. FORENSIC LAB TO IMPROVE Ethiopia’s GDP grew 8.7% in 2016 and that it improved by
EGYPT INTELLECTUAL PROPERTY approximately 8.3% in 2017. The accelerated growth has
DRAFT INDUSTRIAL PROPERTY BILL RIGHTS’ (IPR) PROTECTION AND been attributed to the country’s ability to retain value and
POSITIVE INVESTMENT REFORM IN ENFORCEMENT attract investment despite the global economic downturn.
In 2017 the Botswana Patent Office requested comments on
a draft Industrial Property Bill for submission to the Minister. EGYPT PROMPTS AN URGENCY TO The Government of Egypt has announced recently that it is According to reports, the country’s level of security, low-tariff
Adams & Adams provided comments in respect of patents SECURE BRAND PROTECTION setting up a specialised digital forensic lab for Intellectual access to markets in nearby rich countries, and inexpensive
and designs. We await further developments regarding the Property as part of its enforcement schemes of combating labour have contributed to its increased economic growth.
Hot on the heels of amendments to the laws governing
draft Bill. software piracy. The new lab is designed to resolve business
exports, earlier this year the Egyptian President prompted
reform of Investment Law No. 8 of 1997. The reforms aim to
software and internet-based piracy cases. The Information ETHIOPIA REGISTRY VISIT
Technology Industry Development Agency will host the lab
revive an economy that has seemingly under-performed In June 2017, Adams & Adams Partners, Stephen Hollis and
at its head office.
DEMOCRATIC REPUBLIC in terms of its expectations in recent years. The law is an Dieter Welthagen, along with Menzi Maboyi, Africa Practice
OF THE CONGO (DRC) ambitious one and aims to attract foreign direct investment Manager, travelled to Addis Ababa to meet with the
to Egypt. Registrar, review pending matters, discuss operational issues
POLITICAL UNREST AFFECTS ETHIOPIA and update the registry in regard to the concluding of the
OPERATIONS OF IP OFFICE AMENDMENT OF EXAMINATION establishment of the firm’s 19th Associate Office in Africa.
FEES FOR PATENTS APPLICATIONS NEW ADAMS & ADAMS
The operations of the Intellectual Property Office in the
ASSOCIATE OFFICE PATENTS OF IMPORTATION
Democratic Republic of Congo (DRC) were severely Volatility in the Egyptian currency has led to several changes
affected in 2017 due to political and civil unrest in Kinshasa. to official fees payable for patent examination in Egypt. The While it is possible to file a patent of importation application
Adams & Adams continues its strategy of targeting key
Operations in the DRC continue but IP proprietors should changes in local currency have however had little impact in Ethiopia based on any foreign granted patent, we have
economic destinations on the continent with the recent
expect lengthy delays as the records at the IP Office are on the real cost making only negligible changes to the US been advised, that in order for a patent of importation
opening of an Associate Office in Ethiopia. The expansion of
not currently receiving the required level of attention and dollar equivalent. Furthermore, to encourage Egypt’s young application to proceed to grant, the application should be
the Network is aimed at being beneficial to A&A’s clients by
management. inventors to make use of the patent system, the Ministry based on a granted patent from an examining jurisdiction
creating greater efficiency, more control and advantageous
of Science, Research and Technology - responsible for IP – such as the EPO. This appears to be a recent change in
pricing.
matters in Egypt - has exempted students in educational practice as the Regulation does not require applications to
NEW OFFICIAL IP FEES institutions from paying examination fees. Ethiopia’s phenomenal economic growth and the be based on patents granted in examining jurisdictions. We
The Ministry of Trade in the Democratic Republic of the establishment of formal IP registration systems in 2012 has led will continue discussions with the EIPO in respect of this matter
Adams & Adams launched an Associate Office in Egypt in
Congo announced an increase in the official fees in respect to a significant increase in IP work in Ethiopia. We identified and continue to provide further updates.
2016. The office acts as a hub for the North African region
this important emerging market on the continent as a market
AFRICA UPDATE
of intellectual property matters, with effect from 11 November
where we could benefit from establishing a competent and
2 018 capable Associate office.
15
NAIROBI,
KENYA AFRICA UPDATE 2018
The issues for determination were whether:
• the marks EFAVIR and EPIVIR are so similar that a
likelihood of confusion is likely;
• the Opponent’s EPIVIR trade mark is well-known in
Kenya; and
• the Applicant had a valid claim to the EFAVIR trade
mark.
The Registrar determined that the suffix VIR which occurred
Customs training, Accra frequently on the Register in class 5 (i.e. in 21 records) in Customs training, Nairobi Confiscated engine oil, Kenya
Kenya was suggestive of treatments for viruses. It concluded
therefore that the marks to be compared were the suffixes alcoholic beverages, drugs and medicines, cosmetics, soaps will be known as the Copyright (Amendment) Act 2017.
GHANA EFA and EPI and that they were not similar. It was also
revealed during the proceedings that the parties’ marks
and detergents and hair products.
The Bill proposes amendments to, inter alia, the definition
had co-existed in the market for approximately 16 years Counterfeiting is punishable in Kenya by a fine or imprisonment of a copyright author, a copyright work, the functions of
ANTI-COUNTERFEITING TRAINING without any instances of actual confusion. The Registrar also and the severity of the penalty imposed is commensurate to the Kenyan Copyright Board and the exclusive rights of a
the crime committed. copyright owner. It also envisages changes to the defence
WORKSHOP acknowledged that these were prescription drugs used to
of fair dealing, particularly in relation to computer programs.
treat serious medical conditions, which meant that members
The success of the ACA has been attributed to the large
In October 2017, Adams & Adams Partner, Charl Potgieter of the public would be more circumspect with regard to the
number of its trained officers and their involvement in the But perhaps the most newsworthy amendments are those
travelled to Accra to conduct anti-counterfeiting training products being offered under each mark. In addition, doctors
criminal justice system. In addition, the ACA credits its success relating to Collecting Societies as they are known under the
with members of Ghana Customs. The Customs office has and pharmacists dealing with the medication, as a result of
to collaboration with other intellectual property practitioners current Act. Once the Bill is enacted, Collecting Societies will
requested regular training to assist with detention of goods their duty to their patients and specialised knowledge, would
such as Adams & Adams, and the stringent legal principles officially be known as Collective Management Organisations.
and search and seizure operations in future. not likely be confused.
which are also entrenched in the country’s constitution. The role of these organisations will include the collection
The Opponent fell short of establishing its reputation in the and distribution of royalties. The Bill also envisages stricter
Adams & Adams Partner, Charl Potgieter, conducts regular
EPIVIR trade mark in Kenya. In the Registrar’s view, it has failed control being exercised in relation to the collection and
anti-counterfeiting and product identification training sessions
management of royalties.
KENYA to adduce sufficient evidence to prove that its EPIVIR trade
with members of the agency in Mombasa and Nairobi.
mark was well-known in the relevant sector of the population
in Kenya. HIGH COURT RULING GIVES
A BITTER PILL TO SWALLOW - TRADE TRAINING AND COUNTERFEIT
PARTIES TO TRADE MARK
MARK OPPOSITION CASE STUDY It was found that the Applicant had a valid claim to the EFAVIR
GOODS SEARCH AND SEIZURE
trade mark, having used it in excess of 15 years without any OPPOSITIONS SECOND BITE AT THE
OPERATION
The Kenyan Intellectual Property Institute (KIPI) recently action or compliant from the Opponent and any evidence CHERRY
published its decision to the opposition by Viiv Helathcare UK of actual confusion. In addition, the mark EFAVIR was coined
In July 2017 Adams & Adams Partner, Charl Potgieter
Limited (“the Opponent”) to the trade mark EFAVIR in class 5 from the active ingredient in the Applicant’s anti- retroviral A recent decision in Kenya means that parties in opposition
conducted anti-counterfeiting and product identification
in the name of Cipla Kenya Limited (“the Applicant”). drug being EFAVIRENZ. proceedings can file evidence at any time before a ruling
training in Nairobi with members of Interpol and
is made, even after all their submissions have been made,
The opposition was therefore dismissed. representatives from Burundi, Uganda, Rwanda, Kenya and
The Opponent is the proprietor of the mark EPIVIR which has effectively affording parties multiple chances to file evidence.
Tanzania. Search and seizure operations were conducted
been registered in Kenya in class 5 since 1996. Both EPIVIR and
by the Anti-Counterfeit Agency with the assistance of the In the case of ‘Republic v Assistant Registrar of Trade Marks ex
EFAVIR relate to medicinal and pharmaceutical products for
ANTI-COUNTERFEIT EFFORTS REAP Kenyan Police. A large quantity of engine oil was seized, and parte Strategic Industries Limited and another [2006] eKLR’,
the treatment of HIV.
SOME REWARD IN KENYA criminal proceedings instituted against the offenders. the High Court in Kenya was petitioned by way of judicial
The grounds of opposition included, inter alia, that: review to determine whether the Registrar of Trade Marks, the
The Anti-Counterfeit Agency in Kenya has recently won
• the mark EFAVIR is so similar to the Opponent’s earlier several significant battles in the war against counterfeiting. AMENDMENTS TO COPYRIGHT Respondent in this case, had correctly exercised his discretion
in allowing the filing of further evidence in an opposition to a
registered EPIVIR trade mark that it is capable of According to recent reports, the Anti Counterfeit Agency LAW trade mark application, after the parties had made all their
misleading consumers into believing that they are (ACA) in Kenya has seized around US$ 9 million worth of
Kenya’s Copyright (Amendment) Bill of 2017 recently came submissions and pleadings had closed.
associated; and goods over the last five years, with goods to the value of
about US$ 5 million being destroyed in concluded cases. before its National Assembly. The Bill proposes various
The decision also extends the interpretation of Rule 52 of the
• the EFAVIR trade mark is mala fide on the basis that The ACA is recognised as the coordinating agency in the amendments to the Copyright Act, 2001 and, once enacted,
Trade Mark Rules to mean that, in matters before the Registrar
AFRICA UPDATE
the Applicant chose a mark so closely resembling the enforcement of intellectual property protection in Kenya.
2 018
Opponent’s EPIVIR trade mark to compete unlawfully Among the goods most frequently counterfeited are
with the Opponent and deliberately deceive consumers.
16
PORT LOUIS,
MAURITIUS AFRICA UPDATE 2018
of Trade Marks, parties can make application to file further
evidence even after final submissions have been made, but
provided that a ruling has not yet been issued. LESOTHO
MAPPING A DIFFERENT DECLARATION OF INTENTION
APPROACH TO COPYRIGHT TO USE REQUIRED WHEN
A recent research project in Kenya by tertiary institutions and
DESIGNATING LESOTHO IN
design companies has led to the creation of the first map MADRID SYSTEM
of Kenya’s informal transport system. The informal transport
As of June 2017, a Declaration of Intention to Use is required
system in Kenya is dominated by matatus (privately-owned Taita Baskets Customs training, Port Louis
in Lesotho when the country is designated or subsequently
minibus taxis) and the project was undertaken to obtain
designated in an international application in terms of the
information about the travel networks of matatus to support the Applicant is required to deposit a culture of the micro- registration of service marks, collective marks, certification
Madrid Protocol. The requirement came into effect following
everyday travel plans and, in the long run, urban expansion. organism with either the Kenyan Agricultural & Livestock marks and geographical indications. Provision is also made
a notification to WIPO by the Lesotho Government on 31
Research Organization (KALRO) (formerly known as Kenya March 2017, in accordance with Rule 7(2) of the Common for a registration term of 10 years which will coincide with
The data used to create the initial paper-based map was
Agricultural Research Institute (KARI)) or the Kenyan Medical Regulations under the Madrid Agreement Concerning the a 10-year renewal term. In addition, provision is made for
obtained by researchers, equipped only with smartphones,
Research Institute (KEMRI). However, these organisations International Registration of Marks and the Protocol Relating incorporating the terms of the Banjul Protocol - which governs
who navigated the matatu routes and communicated with
have indicated that they do not have the requisite facilities to that Agreement. ARIPO trade marks - into Malawi’s national law.
frequent commuters in the Kenyan capital. The digital map
and/or capacity to accept the deposit of a micro-organism.
can now be downloaded using Google Maps as a transit
Due to this lack of capacity, the Kenyan IP Office, together However, given the absence of legislation and regulatory
option. Printed maps are also available and assist commuters
with WIPO, conducted a workshop in December 2017, mechanisms, we strongly recommend that proprietors
and tourists alike in navigating the streets of Nairobi.
relating to the deposit of micro-organisms. It has requested continue to protect their trade mark rights at a national level.
MAURITIUS
It appears that several mobile applications providing these institutions to develop sufficient guidelines to ensure
information relating to travel routes in Nairobi have also since compliance with the requirement in terms of the Act.
been developed and provide information based on the
ANTI-COUNTERFEITING TRAINING
matatu network map, specifically, the digital map which is
COLLECTIVE TRADE MARK LIBERIA WORKSHOP
freely available.
REGISTERED IN KENYA | TAITA Training was conducted with personnel of Customs in
Be that as it may, the Copyright Act, 2001 specifically SUBMISSION OF COMMENTS TO Mauritius in November 2017. Members of the Anti-Piracy
provides that a map constitutes an artistic work, which is The Kenyan Intellectual Property Institute recently registered THE DRAFT IP REGULATIONS Unit also attended the training session and are now able to
eligible for Copyright Protection in Kenya. Certain conduct, the mark TAITA BASKET as a collective mark. A collective conduct in-market search and seizure operations.
mark is a mark capable of distinguishing, in the course of The Liberia Intellectual Property Act was approved on July
therefore, specifically the unauthorised reproduction of the
trade, the goods or services of persons who are members of 14th, 2016 by the House of Representatives of Liberia. The
matatu map or its distribution to the public by sale without
an association, from goods or services of persons who are new act explicitly regulates the applicability of the Paris
the necessary authority, would amount to an infringement of
the copyright subsisting in the map. not members of such an association.The sisal Taita baskets Convention, the Madrid System and the Protocols of Harare
MOROCCO
which are produced in Kenya’s Taita Taveta County are and Banjul. The Draft Regulations to the Act were recently
made according to traditional art by local women who have made available for comment, with a deadline for submissions
SUBSTANTIVE EXAMINATION passed down the age-old skill of basket weaving through the at the end of January 2018. We await further news in this INCREASE IN IP OFFICIAL FEES
generations.WIPO recently embarked on a training initiative regard.
A recent amendment to the Miscellaneous Amendments The Moroccan Office of Industrial and Commercial Property
for basket weavers in the many villages in the Taita Taveta
Act 11 of 2017 – introduced amendments regarding the (OMPIC) announced an increase in the official fees in respect
County with a view to standardising the production and
patentability requirements for patent applications in Kenya of all intellectual property matters which took effect on 1
therefore the quality of the TAITA BASKETS.
and also extended the period of requesting examination October 2017. OMPIC offers up to 50% reduction in official
from 3 years to 5 years from filing the application. The outcome of this project resulted in the formation of the
MALAWI fees if applications are filed online, but the online system is
Taita Baskets Association and the registration of a collective not fully operational yet and some formalities still need to be
DEPOSITORY REQUIREMENTS FOR mark. NEW TRADE MARKS BILL PASSED performed manually.
MICRO-ORGANISMS The protection of its intellectual property registration rights in The Malawian Parliament has passed a Trade Marks Bill which
this instance has not only allowed the Taita Baskets Association is anticipated to modernise the protection of trade marks by EPO VALIDATIONS IN MOROCCO
Whilst many countries are members of the Budapest Treaty
to gain customer confidence and recognition in Kenya and incorporating new developments in the field of intellectual
which regulates the deposit of micro-organisms, Kenya is not Morocco is confirmed as a validation state of the EPO,
abroad, it has also allowed a traditionally vulnerable group property in the country. The new Bill, once enacted, will repeal
a member. As such, the Kenyan Industrial Property Act, states meaning that European patents, filed on or after 1 March
of people in the society to come together, commercialise the existing Trade Marks Act of 1957. Amongst the changes
that where the patent application relates to- and involves the 2015, may be validated in Morocco. After validation, they will
their indigenous knowledge and become formidable players to be brought in by the new law will be provisions for the
use of a micro-organism which is not available to the public,
in their industry.
19WINDHOEK,
NAMIBIA AFRICA UPDATE 2018
The Respondent argued that it had acquired a reputation in
the RENTOKIL trade mark in Namibia through the international
fame of the trade mark including in South Africa (which could
have led to spill-over popularity in Namibia) and through
indirect use in Namibia by its South African subsidiaries. The
Respondent was, however, criticised by the Court for failing
to provide any affidavits by its subsidiaries confirming these
facts. Without such affidavits, the evidence amounted to
hearsay and was, as such, inadmissible.
Adams & Adams Partner, Charl Potgieter (left), The application was upheld and the counter-application
Anti-counterfeiting search and seizure operation, Namibia Training conducted in Windhoek
assisting officials during the seizure in Namibia was refused. The Respondent is appealing the decision.
confer principally the same protection as patents granted by trading as Rentokil Namibia Pest Control Services brought an
the EPO for the 38 member states of the European Patent
NAMIBIA application for the cancellation of a trade mark registration
Organization. for the mark RENTOKIL in the name of the Respondent, NIGERIA
Rentokil Initial 1927 PLC, a UK-based company.
It is necessary to deliver translations into Arabic or French to ANTI-COUNTERFEITING TRAINING
the Moroccan Office of Industrial and Commercial Property
WORKSHOPS AND SEARCH AND The Applicant adopted the trade mark RENTOKIL in 1998 and ANTI-COUNTERFEITING TRAINING
(OMPIC) within three months from the date of publication has used it continuously in Namibia since then in relation
of the European patent. For foreign filers, it is necessary to SEIZURE OPERATION to his pest control business. The Applicant also registered a A search and seizure operation was conducted in Nigeria
during which counterfeit washing powder was seized and the
perform European patent validation in Morocco through an defensive company name for RENTOKIL PEST CONTROL.
Adams & Adams Partner, Charl Potgieter travelled to Namibia infringer arrested. This led to a warehouse being uncovered
agent, registered as a Moroccan patent attorney.
to conduct anti-counterfeiting training with members of The Respondent does not have any branches in Namibia. It and large quantities of washing powder were seized. The
Interpol, Police and Customs in November 2017. Training applied to register the RENTOKIL trade mark in class 37 in 2003 criminal case is ongoing.
was also conducted for the members of the World Customs and its application proceeded to registration in 2010.
Organisation and members of Customs from Namibia,
MOZAMBIQUE Rwanda, Mozambique, Botswana, Angola, Burundi, Malawi, The Applicant sought the cancellation of the Respondent’s THE INDUSTRIAL PROPERTY
South Africa, Mauritius, Comoros, Madagascar, Swaziland, registration on the basis that use of the mark would be likely COMMISSION BILL PASSES ITS
OFFICIAL FEES INCREASE Zambia, Lesotho, Uganda, Kenya and Zimbabwe. to deceive or cause confusion in light of his local reputation SECOND READING
in the mark. He also advanced a non-use argument, in the
In-market operations were subsequently carried out The Industrial Property Commission Bill, which has been
Official fees for IP matters increased on 13 July 2017 alternative.
in ‘China Town’, Windhoek, where a large quantity of pending finalisation for many years, passed its second reading
in Mozambique. However, due to the volatility of the
counterfeit goods, such as clothing, footwear, watches and The Respondent filed a counter-application seeking an order in the Nigerian Parliament in November 2017. Once the Bill
Mozambican currency, the effect in US Dollars has been
sunglasses was voluntarily surrendered and seized. A further interdicting the Applicant from infringing its registered trade has been subjected to further review and public hearings by
negligible.
seizure operation in Walvis Bay in December resulted in the mark and from competing unlawfully with the Respondent the House Committee on Commerce, and referred back to
confiscation of 84 672 items of personal care products. The by passing off his business as being associated or connected Parliament, it will undergo a final reading. If successful it will
MOZAMBIQUE ONE STEP CLOSER goods are scheduled for destruction. with the Respondent. be passed into law. The Bill recognises developments in the
TO BANJUL PROTOCOL (ARIPO) The Court found that any reputation in the RENTOKIL trade
IP field and will be welcomed by users of the system as the
current laws are regarded as outdated.
On 19 September 2017, the Council of Ministers of Mozambique PASSING-OFF DECISION ISSUED BY mark in Namibia since 1998 should be attributed to the
approved a resolution for Mozambique to accede to the NAMIBIAN HIGH COURT Applicant. As such, any use of the mark by the Respondent
Banjul Protocol. The Banjul Protocol on Trade Marks provides would be likely to deceive and cause confusion detrimental
for the filing of a single trade mark application at the ARIPO Justice Parker AJ of the Namibia High Court issued a landmark to the goodwill established by the Applicant. RWANDA
Office - African Regional Industrial Property Organization decision during 2016 in an application for the cancellation of
a registered trade mark and a counter-application based on The Court found that the Trade Marks in South West Africa
- which can cover any member state designated by the
applicant. passing-off at common law. Act did not recognise or protect foreign well-known trade DEFENDING CANCELLATION
There have not been many reportable cases in Namibia
marks and, as such, to succeed with the counter-application
APPLICATIONS
While Mozambique was one of the founding members the Respondent was required to prove a reputation in the
of ARIPO, it has yet to accede to the Banjul Protocol. The concerning trade mark law, so the decision provides mark in Namibia for purposes of a passing-off claim under the Adams & Adams recently assisted a trade mark proprietor
next step is the deposit of Instruments of Accession with the some much needed guidance on the interpretation and common law. The Court made it clear that foreign popularity in successfully defending a cancellation application filed
Director General of ARIPO. There is no certainty as to when application of the Trade Marks in South West Africa Act 48 of alone cannot bar the adoption and registration of the trade against one of its registrations in Rwanda. The Applicant
AFRICA UPDATE
this will take place, but once the instrument is deposited, the 1973 (“the Act”) and the common law. mark in Namibia by another party.
2 018
Banjul Protocol will become effective in Mozambique after a
The Applicant, Mr. Michael Demtschuk, a Namibian resident
3-month period.
20VICTORIA,
SEYCHELLES AFRICA UPDATE 2018
sought the cancellation of the trade mark proprietor’s trade fair and equitable sharing of benefits between the providers Various attempts at peace and reconciliation have been new type of work, namely craft works; protection of
mark registration on the ground of non-use. However, we and the users, including monetary compensation as well made since 1991, but all have been unsuccessful. Islamic performers’ rights; protection of rights of phonograms;
were able to prove that the trade mark proprietor at no time as joint ownership of all relevant intellectual property rights based local administrations have been created in the country and promotion of broadcasting of local content.
had any intention not to use its trade mark in Rwanda, or to vesting in the genetic resources, or the traditional knowledge with a sense of peace and autonomy. The most successful Protection of performers’ rights and the promotion of
abandon this trade mark. In fact, the Applicant was aware associated with the generic resources. of these administrations is in Somaliland, a self-proclaimed broadcasting of local content are already dealt with
of the trade mark proprietor’s intention to use its mark as the independent state, which has remained relatively stable over in other legislation and policies, such as the Performer
parties had been engaged in correspondence regarding the years. While the acquisition and enforcement of trade Protection Act, an amended version of which was
third party use of the mark in Rwanda and the possibility of mark rights in Somalia is not possible, trade mark owners have published for comment in December 2016;
entering into a commercial relationship.
SEYCHELLES been able to publish cautionary notices within the Somaliland
- an amended definition of ‘orphan work’;
This correspondence was held by the Registry to be sufficient administration.
to prove the trade mark proprietor’s intention to use its - that there is no longer a substitution of the definition
mark in Rwanda. We had also argued that the relevant PROPOSED NEW REGULATION Trade mark owners have resorted to publishing cautionary
of ‘reproduction’;
notices to inform infringers and the public at large of their
date to take into account when calculating the three- AND TAX ON FOREIGN ARTISTS proprietary rights in trade marks and warn against potential • removal of the provision that states copyright shall be
year non-use period ought to be the final date of issuance
PERFORMING IN SEYCHELLES infringements. The notices are effectively operating as a perpetual;
of the trade mark registration certificate, in which case
deterrent against the unauthorised use of trade marks.
the present cancellation application would have been In the wake of an increase in the number of foreign musicians
- it appears that the resale of royalty right is now
filed prematurely. In this particular matter, the trade mark and artists performing in Seychelles, that country’s Creative Until recently, the publication of cautionary notices was only limited to artistic works, no rate is prescribed in the
proprietor’s registration certificate had initially been issued Industries and National Events Agency (CINEA) is proposing possible in Somaliland. It now appears that the publication of Bill and instead provision is made for the Minister to
in March 2011, but needed to be returned and corrected new regulations and a tax on foreign artists wanting to travel cautionary notices is also possible on a wider scale in Somalia publish the proposed rate in the Gazette. There is
as it contained certain significant errors. The corrected
to the Seychelles to perform. as a whole. also a presumption regarding the identity of the
certificate of registration was only re-issued in October
2012. The Registrar of Trade Marks considered the first date CINEA’s proposal would require that all foreign performers user, performer, owner, producer or author and the
Usually, the publication of cautionary notices take place in
of issue of the registration certificate as the relevant one for apply to the agency prior to any performance on the duration of the resale royalty has been limited in line
the indigenous language (Somali) in a newspaper, which is
calculating the non-use period, irrespective of the fact that Seychelles islands. The intention is for an application to be with the duration of the term of copyright.
published daily. There is no bar on the publication of notices
it was incorrect and could not be relied upon by the trade made in writing explaining why the artist is going to the islands, in English via electronic media as well. This is recommended What has also been retained from the previous Bill include
mark proprietor to assert any rights. In terms of procedure, where they will be performing, who their local contact or as it will ensure a greater reach and should be more effective the provisions surrounding parallel importation of goods,
the cancellation process involved several mediation sessions agent is, where they will be staying, as well as a full itinerary. in deterring infringements. numerous exceptions to infringements, regulation of
between the Registrar and the parties’ representatives.
These proposals are claimed to be aimed at increasing the Collecting Societies and the establishment of a Copyright
It is also advisable for cautionary notices to be re-published
revenue generated from foreign performers and it remains to Tribunal.
from time to time to reinforce trade mark rights in the country.
be seen if CINEA will be able to successfully convince other
The scope of copyright protection has been specified not
SIERRA LEONE industry role players and the legislature to enact regulations
to include ideas, methods of operation or mathematical
in line with its proposals. There are naturally industry role
concepts and, in the case of computer programs, interface
THE NAGOYA PROTOCOL
players who are not in favour of these proposals, and regard SOUTH AFRICA specifications have been excluded. Furthermore, copyright
would have to be given to the Seychelles Copyright Act of protection of tables and compilations shall not extend to their
2014 when any regulations are considered.
On 1 November 2016, Sierra Leone deposited its instrument
COPYRIGHT AMENDMENT contents.
of accession to the Nagoya Protocol on Access To Genetic
Resources And The Fair And Equitable Sharing Of Benefits
BILL 2017 Various specific technology related provisions have been
included.
Arising From Their Utilization To The Convention On Biological
Diversity - the “Nagoya Protocol”.
SOMALIA A revised version of the Copyright Amendment Bill was
introduced into the National Assembly on 16 May 2017 in As a Section 75 Bill, the next step is for the Bill to be considered
terms of Section 75 of the Constitution. by the relevant Portfolio Committee. If there is great public
The Nagoya Protocol was adopted on 29 October 2010 in
Japan as a supplementary agreement to the Convention
CAUTIONARY NOTICES NOW interest in a Bill, the Portfolio Committee may organise public
The Copyright Amendment Bill, which was first published for
on Biological Diversity. This Protocol, which entered into POSSIBLE IN SOMALIA comment in July 2015, was both commended and criticised
hearings to allow interested parties an opportunity to submit
written comments or make oral representations.
force on 30 January 2017 in Sierra Leone, seeks to provide a by stakeholders and experts in the field. It appears that a lot
Prior to 1991 the Trade Marks Registry in Somalia functioned
legislative framework for implementing the sharing of benefits of work has gone into putting together a revised version of
and it was possible to file trade mark applications. The Somali
arising from the utilisation of genetic resources and traditional
Government was overthrown by insurgent groups in 1991 and
the Bill that seeks to make much headway in addressing the DROP-CATCHING’ DEFENCE
knowledge associated with genetic resources, with a view to
since then it has not been possible to file trade mark applications
concerns previously expressed. TESTED IN DOMAIN NAME
conserving and promoting the sustainable use of biodiversity.
in Somalia or enforce or maintain existing registrations. Indeed, In comparison with the first Bill, briefly, some of the revisions COMPLAINT
AFRICA UPDATE
The Nagoya Protocol directs contracting parties to ensure the the Registry in Mogadishu remains closed. include: The practice of drop-catching in the South African context (in
2 018
the .co.za domain name space) was considered for the first
• removal of the provisions relating to the creation of a
time in a dispute concerning the domain name darling.co.za.
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